Are Independent Executors Held to the Same Standards as Other Representatives? Texas Probate Court Says “No”

If a person dies without a will, the process of settling their estate is handled through the probate court in the state where they resided. The probate court oversees the distribution of the deceased person’s assets and payment of debts. Probate is a court-supervised process for transferring property (money, real estate, stocks, etc.) of a deceased person to his/her heirs or beneficiaries. The property is said to be “probated” or “administered” by the court. If there is no will, the court decides how the property will be distributed. This is called probate administration.

Here are a few things you may not know about probate litigation and the probate court as they relate to “independent executors” and how it might affect the probate court’s distribution of the decedent’s property or assets.

Probate Definitions: 

  • Personal Representative (section 145): includes the executor, independent executor, administrator, temporary administrator, guardian, and temporary guardian, along with their successors.
  • Independent Representative (section 146): a person who is capable of making a will may state within his will that the only items to be completed within a court should be limited to probating the recording of his will, and the return of an inventory, appraisement, and list of claims of his estate. As long as the estate is represented by an independent executor, no action other than those explicitly required by the Probate Code will be completed in court.
  • Payment of Claims and Delivery of Exemptions and Allowances: despite the independent executor’s freedom from the court, they must address claims against the estate (receive presentation of and classify, allow, and pay, or reject) and deliver exempt property and allowances of support entitled to others as though they were ordered to by the court.
  • Memorandum of Allowance or Rejection of Claim (section 309): when an authenticated claim against the estate is presented to the Representative, he/she must issue a signed memorandum that states his/her stance on the claim and whether specific portions are allowed or rejected.
  • Failure to Endorse or Annex Memorandum (section 310): if the Representative does not state whether he allows or rejects the claim within 30 days, it shall serve as a rejection of the claim. If the claim leads to a lawsuit, the Representative may be taxed individually or he/she may be removed on the written complaint of any person interested in the claim, after personal service of citation, hearing, and proof, as in other cases of removal. 
  • Suit on Rejected Claim (section 313): When either an entire claim or part of a claim has been rejected by the Representative, the claimant shall institute suit thereon within ninety days after such rejection, or the claim shall be barred. When a rejected claim is sued on, the endorsement made on or annexed thereto shall be taken to be true without further proof, unless denied under oath. When a rejected claim or part thereof has been established by suit, no execution shall issue, but the judgment shall be certified within thirty days after rendition and filed in the court in which the cause is pending, Entered upon the claim docket, classified by the court, and handled as if originally allowed and approved in due course of administration. 

Facts & History of the Probate Case

Prior Case Law:

The Court of Civil Appeals changed the previous ruling regarding estate claims (which stated that the Revised Statutes were not applicable to claims involving estates administered by an independent executor). Under the Probate Code, a claim presented to an independent executor must be acted on within thirty days or be labeled rejected. A suit must be filed within ninety days after being acted upon or recovery on such a claim will be barred. 

Grace Bunting (Plaintiff) conducted services for Bertha Helen King prior to her death. Martice King Pearson, the daughter of Mrs. King, was appointed as the independent executrix to Mrs. King’s estate in her will. Plaintiff presented her claims to Executrix two separate times, both of which Executrix did nothing. Plaintiff sued Executrix for services rendered to Mrs. King (one claim was for money and another claim set out the services rendered). The trial court ruled in favor of Plaintiff. Executrix appealed, and the Court of Civil Appeals reversed, stating that the term “Representative” in sections 309, 310, and 313 of the Probate Code included independent executors.  

The Supreme Court reversed the judgment of the Court of Civil Appeals and affirmed judgment of the trial court. It held that section 145 of the Probate Code was intended to free independent executors from court control (unless the Code provides otherwise). It was not persuaded by the argument that section 146 (which refers to representatives) makes section 309, 310, and 313 applicable to independent executors. It articulated that Section 147 of the Probate Code states that claims against an estate in independent administration may be enforced by levying execution on the estate. Sections 309, 310, and 313 are concerned with authenticated claims that are meant to be processed within the probate court. Application of these sections would either indirectly or directly conflict with section 147. Using these considerations, the Supreme Court held the claim was not barred by the ninety-day statute of limitations listed within one of the sections.

Main Consideration:

Are independent executors held to the standards listed in Probate Code sections 303, 310, and 313 due to section 146 (which discusses “Representatives”)?

No, independent executors are not held to these standards as they are able to operate independently from the Court unless the Probate Code specifically states otherwise.


The probate court’s ruling in Bunting v. Pearson, 430 S.W.2d 470 (Tex. 1968) shows that the Probate Code sections that direct “Representatives” are not applicable to independent executors, and as such they are not bound by the statute of limitations periods mentioned within the sections.

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Do you need help with a probate matter in Austin-Round Rock area or the surrounding communities? We are experienced probate attorneys who represent clients with sensitive probate matters. If so, please give us a call us at (512) 273-7444.

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